333. The next justice

Christopher L. Eisgruber (I dont mean to be rude, but with a last name like that, is the middle initial really necessary?) has written The Next Justice: Repairing the Supreme Court Appointments Process, a well-meaning, mildly interesting and thoroughly exasperating book.

Eisgruber comes across as a likeable, intelligent guy aswarm with good intentions. His basic theme is that the Supreme Court is perfect and everyone else needs to accommodate themselves to that. The problem is, Im not sure he understands thats his theme.

I cant figure out who the book is written for. Part of it is an introduction to (cue Sousa march) The Supreme Court, Paladin of Liberty, written for the semi-informed general reader. But the concluding chapters are full of (thoughtful, well-meaning) advice to the members of the Senate Judiciary Committee, a rather more specialized audience. In the middle an entire chapter is composed largely of quotations from Supreme Court opinions. Throughout, Eisgruber has smart, modest things to say.

In short, theres an Atlantic Monthly article inside this book screaming to be let out.

Eisgruber gets real close to proposing a genuine solution to the contentious-yet-contentless confirmation hearing when he suggests that if a nominee refuses to answer certain carefully-calibrated questions, "skeptical senators would be well justified in voting against confirmation."

This tiptoes right up to a genuine insight: confirmation hearings will become meaningful when the Senate, asserting its prerogatives as an institution, demands meaning. If a nominees refusal to answer means rejection, nominees will answer. Theres nothing mysterious about it.

But Eisgruber doesnt seem to realize what hes saying, because in the next chapter he tells us that "senators and the American public will have to give up the tantalizing but bogus concepts, such as judicial restraint, that are now commonly invoked to evaluate nominees."

Oh, I see. Just reeducate everyone. What is it that Bertolt Brecht, der Mann ohne (Redeeming) Eigenshaften, suggested to the East Germany government? Why not just "dissolve the people / And elect another?"

Thats whats so exasperating about the book. Eisgruber understands that political hardball will instantly end confirmation-hearing farces. But he cant bring himself to recommend any course of action that genuinely challenges the status quo. Its just not in his nature. His talk about the American people giving up tantalizing concepts is just a word-processed way of drifting into irresolute silence.

Its as if Eisgruber – who, Im sure, is the very soul of stability – has two personalities: the smart one who notices things and the conventional one who shushes the first. And they took turns writing this manuscript.

An example: he says (several times) that Eisenhower was the last President who disregarded the ideology of his nominees, choosing justices based solely on perceived legal ability. He also notes that two of Eisenhowers appointees, Brennan and Warren, were leaders of a Court that "rendered a series of ideologically charged decisions ensuring that no future presidential candidate [after Eisenhower] would be able to ignore the Court." (He repeats that thought, too, in various phrasings.)

Elsewhere, Eisgruber notes that its unlikely any future President will nominate someone from the opposing party (as both Eisenhower and Truman did), "given the Courts role and visibility in the post-Warren Court era".

But he never ties together these various observations. Its true that the Warren Court increased the Courts role and visibility, but thats just a polite way of saying it asserted vast new powers over the democratic branches of government, buying off Congress by giving it increased power over the states, and buying off state-court judges by giving them increased power over the other branches of their governments.

Eisgruber notes the most obvious example of this process when he writes that for 20 years groups on both the right and the left "have cared above all else about what Supreme Court nominations will mean for the future of Roe and abortion policy in the United States." After Roe v. Wade, there was no other way for abortion opponents to seek to change national policy. By eliminating democratic change as an option, the justices practically insisted that all future vacancies on the Court would occasion intense political campaigns devoted to the issue. The Court did that – it changed the nomination hearings into referenda on abortion.

The same is true of criminal law, the area of American life in which the Court has exerted the greatest influence in the past 50 years but a subject Eisgruber hardly mentions. (Princeton men dont do criminal law, darling. Their security guards take care of it.)

Starting during Eisenhowers second term, the Supreme Court took away a significant part of every local communitys authority to order its own society. The only way for local communities to regain the autonomy they enjoyed (and sometimes abused) in the early 1950s is to (1) ignore / work around the Supreme Court; or (2) attempt to influence the nomination and confirmation of Supreme Court justices.

Think of your favorite political cause. The Supreme Court has left grubby fingerprints all over it, hasnt it? You have to search hard for an unsmudged cause in modern America. Thats why I think confirmation hearings for Supreme Court nominees ought to be at least as contentious as congressional and presidential campaigns. After all, in our post-democratic nation, members of Congress and Presidents dont have any power to make ultimate decisions about an ever-lengthening list of issues.

But although I think Eisgruber understands this, hes wholly committed to the Goodness and Rightness of all things Supreme Courtish. The law operates like a religion (see post 332) and former Supreme Court clerks, who owe their careers to having been singled out by a justice, tend to be worshipful acolytes. (See post 204.)

So Eisgruber winds up saying, in consecutive paragraphs: "Unlike other federal courts, the Supreme Court has a discretionary docket. The justices, in other words, have the power to choose which appeals they will hear. … The Supreme Courts docket … require[s] the justices to make politically controversial judgments." (My italics.)

Freud would have made much of the juxtaposition of such obviously contradictory sentences just a few lines apart. (Page 28 if youre following along at home.) Its necessary for Eisgrubers policy prescription ("try to make the best of it") to pretend that the justices have no choice but to nullify democratic choices. But he knows thats just not true. Hes honest enough not to hide what he knows, but too successfully conventional to integrate it into his recommendations. (See post 329.)

The late Meg Greenfields last book, Washington, includes a taxonomy of Washingtonians that includes the Grown-Up Good Child – those handy, capable people who live to please powerful mentors. Grown-Up Good Children prosper in hierarchies – think of the former Supreme Court clerks that have gone on to become Supreme Court justices (Roberts, Stevens, Rehnquist, Breyer). Greenfield put herself in that category, and I suspect Eisgruber belongs, too. Grown-Up Good Children dont bite the hand that fed them.

Then again, maybe its simply the case that, after mature reflection, he approves of our reversion to a government of unaccountable elders. After all, thats the way our ancestors did it in the Pleistocene, so evolutionary psychology supports it. I mean, just look at street gangs, Mafia families and prestigious law firms. You trying to tell me the similarities are coincidence?

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